When Trinity Western University (TWU), a Christian-focused post-secondary institution, announced plans to pursue accreditation for a new law school, a tide of opposition swelled from within the Canadian legal establishment and academy.

A near unanimous chorus of professors, Law Deans, and student groups urged the Federation of Law Societies to reject TWU’s application on account of its homophobic “Community Covenant”. After the Federation and the provincial government approved the program last month, a prominent civil rights lawyer threatened to sue.

Personally, I was not bothered by TWU’s application for accreditation. The human rights opposition has insisted that a “one-size-fits-all” approach is the only way to ensure equality. I wish to offer a broader account of the human rights principles at stake.

Without doubt, TWU’s restrictive, moralistic Covenant is repelling, even offensive, to many gays and lesbians, non-Christians, the unmarried, and bon vivants of various stripes.

The Covenant roots the University’s mission in “the evangelical Protestant tradition”, nurturing a “commitment to the person and work of Jesus Christ” requiring all to abide by “biblical precepts, believing that this will optimize the University’s capacity to fulfil its mission”.

Prospective members are invited to “sincerely embrace” the Covenant. It encourages the cultivation of the Christian virtues of love, joy, peace, patience, humility, mercy and justice; living honestly and with integrity; treating all persons with respect and dignity (from “conception” to death); being responsible citizens locally and globally; and observing modesty, purity and “appropriate intimacy”.

The strict morality of the Covenant means that drinking, smoking, recreational drugs and pornography are banned on campus; wholesome fun is encouraged; and sexual intimacy is to occur only with formal blessing (marriage), between two persons (no polyamory or polygamy), who are of the opposite sex (no same-sex relations).

This is obviously not everyone’s cup of tea. It’s certainly not the kind of social, spiritual or intellectual community I would want to study or teach in.

But that’s precisely the point: the raison d’etre of a private religious institution is to enable members of a minority community to self-select in accordance with their distinct values and shared vision.

Freedom for a religious institution to pursue a legitimate faith-based mission without outside coercion or interference is an elementary principle of statutory human rights law.

Opponents of TWU claim they have no objection to TWU’s existence, so long as it doesn’t join the exclusive law school club.

The problem with this argument is that accreditation is not conditional on the internal values or admission criteria set by academic institutions. And that’s a good thing. The last thing law schools should desire is greater interference in their internal workings by the Federation of Law Societies or the government. Institutional autonomy and academic freedom would be imperilled otherwise.

If TWU is allowed to operate, admit students and confer degrees, as it is, then it also deserved to be judged on the same technical merits that any other institution seeking accreditation as a law school would be.

It’s not the business of the Federation, the Dean’s Council, or the faculty councils of other law schools to meddle in TWU’s operation simply because they don’t believe in the Covenant.

Critics offered various arguments to justify the unusual call to block TWU’s approval. These objections are irrelevant to the process of accreditation. More importantly, none offers a sound interpretation of all the applicable human rights principles at stake.

1. TWU is incapable of teaching ethics, the Charter and human rights

The idea that people who hold personal, faith-based convictions that are contrary to liberal norms cannot effectively teach the law, or approach education with an open and critical mind, is rooted in stereotype, not fact or logic. Not all faith is dogma and not all dogma is faith-based. The ability to think critically is not the preserve of the secular minded.

Any general expectation that law teachers’ personal values will perfectly align with some fixed conception of what the law means is unrealistic. It’s also, in my opinion, undesirable.

Diversity in education requires embracing pluralistic understandings of the law. A good teacher is one who can canvass various perspectives and foster critical engagement with both dominant and divergent norms. A good teacher is not someone who preaches religion, secularism, rights-ism or any ideology.

2. TWU will produce anti-gay lawyers

If the logic is that the Covenant would necessarily produce lawyers who are anti-anything-that-the-Covenant-prohibits, then the problem goes far wider than the production of anti-gay lawyers. Non-Christians, smokers, drinkers, hedonists, single mothers, divorced people, atheists, and women seeking abortions will all have to fear if this illogical argument actually comes to bear.

If the argument is that TWU graduates are more likely to act discriminatorily, then this logic would justify religious and values-based profiling of prospective lawyers—a dangerous and slippery slope.

Moreover, there’s no evidence that secular education prevents discrimination any more than religious education promotes it. Most law schools claim to uphold values of non-discrimination, yet we do not operate on the assumption that graduated lawyers will always be respectful of human rights.

On the contrary, startling data about the prevalence of harassment and discrimination within the legal profession—by graduates of enlightened secular law schools—suggests that law school values do not serve as a reliable predictor of law graduates’ professional conduct.

3. The Covenant will distort the composition of its faculty, demean some members of its student body and send a damaging message to the public

Certainly, the composition of the faculty and student body at TWU will be overwhelmingly Christian, heterosexual and married or sexually abstinent. It will be comprised of self-selected members of a faith community who are bound together by deeply-held (if not immutable) personal characteristics.

Although this composition will fail to represent the diversity of Canadian society, it is a legitimate goal of a private faith-based institution to foster a social and spiritual environment that accords with its religious mission.

The damaging message to the public would be denying minority evangelical Christians the opportunity to earn their law degree in a private, faith-based setting that meets the technical requirements to qualify as a law school. We may as well be saying, “evangelical Christians are not welcome” in the legal profession.

4. The Covenant will produce a “gay quota” to law school admission

If the Covenant produces a gay quota, it equally produces a Jewish quota, a Muslim quota, a common-law partner quota, etc. Public law schools bear responsibility to deal with problems of minority underrepresentation based on social fact evidence.

One unstated assumption of this argument is that evangelical Christians are taking law school positions away from gays and lesbians. This is a false corollary. TWU’s accreditation will not, in true effect, create additional law school spots for anybody in the non-evangelical public.

5. TWU discriminates against LGBT and therefore should not gain legitimacy through accreditation

The purpose of accreditation should not be to bequeath external approval of the internal policies, admissions criteria or teaching methods of law schools. Accreditation is and should be limited to assessing the school’s ability to teach core competencies and skills.

It’s certainly true that the Covenant discriminates against LGBT.

Why the opposition has fixated on the exclusion of gay sex and gay marriage, while saying nothing about other discriminatory aspects of the Covenant is puzzling. A basic tenet of human rights law is that there is no hierarchy of rights.

I look at the Covenant and consider my own position as a straight Muslim law professor who lives in a common-law relationship.

TWU prides itself on being “made up of Christian administrators, faculty and staff”. My job prospects at TWU are nil. I’m worse off than if I were a gay Christian.

To the extent that the Covenant bars LGBT people from enrolment or employment, this is by adverse effect, not direct exclusion.

Similarly, while the Covenant doesn’t ban non-Christians from admission as students at TWU, it’s hard to imagine them ever feeling part of the TWU community if the Covenant is taken seriously.

Thus, non-Christian straight students are about as equally discriminated against as are Christian gay students. Non-Christian gay students would be doubly discriminated against.

To the extent that the Community Covenant regulates sexual activity, it doesn’t adversely affect gay sex any more than straight sex outside of marriage. The adverse impact the Covenant would have on the sex life of an LGBT person (abstinence), is identical to the adverse impact it would have on an unmarried straight person (abstinence).

Whether this ultimate sacrifice would be voluntary or coercive would not be determined by one’s sexual orientation. Rather, it would be determined by the seriousness of one’s commitment to traditional Biblical teachings, which presumably is what would attract individuals to apply to TWU in the first place.

Personally, I take no offence at being excluded from a community whose values I do not share. But that is no reason to delegitimize the community or ban its educational institutions from the law school club.

The well-intentioned opposition to TWU need not make martyrs to the cause of secularism, nor victims out of the very human rights principles they claim to promote. Let TWU have its law school.

Comments

… idea that people who hold personal, faith-based convictions that are contrary to liberal norms cannot effectively teach the law, or approach education with an open and critical mind, is rooted in stereotype, not fact or logic. Not all faith is dogma and not all dogma is faith-based. The ability to think critically is not the preserve of the secular minded.

I’m somewhat concerned that formed communities set people’s expectations, rather than disabling their critical faculties. If one assumes that non-christians or gay people are “bad”, then you may never get to the reasoned considerations, but act with a bias derived from one’s own expectations.

A recent example, which sounds from here rather like a freudian slip, is the Supreme Courts’ ruling in Bedford et al. v. Canada (Attorney General) 2013 SCC 72, which throughout used the traditional derogatory term “prostitution”, rather than the “sex trade” used by Cossman in her comment here, http://www.slaw.ca/2013/12/21/a-comment-on-bedford/

If a body of experienced judges accidentally biases their writings, a student body of self-reinforcing and self-selecting Christians is somewhat more likely to do so.

Conversely, an overly secular school or workplace might well train lawyers to distrust members of any religious group, and argue that they should eschew religious headgear at work (;-))

It’s not obvious to me, therefor, if one should want schools who are secular, or a group of schools each of which comes from a different worldview!

Mr. Bhabha, I remain undecided on this particular issue, and I think your perspective offered here is important to consider. I do take issue with one of your statements. Specfically, I do not think–indeed, I know for a fact–that it is not simply, “gays and lesbians, non-Christians, the unmarried, and bon vivants[?!] of various stripes,” to whom this, “restrictive, moralistic Covenant is repelling, even offensive.” It is offensive to many others who believe that this is not an example of, “treating all persons with respect and dignity.”

First off I appreciate your commentary Mr. Bhabha, both sides of a debate need to be heard for a reasonable conclusion to be reached.

I’ve spent the past hour typing then erasing, typing then erasing, typing then erasing. The reason is that I can’t find the words to properly state my disagreement, I just can’t get on board with a single one of your points. Not one. I’ll leave it at this:

…It encourages the cultivation of the Christian virtues of love, joy, peace, patience, humility, mercy and justice; living honestly and with integrity; treating all persons with respect and dignity…

That sounds like a school I would love to go to!

TWU prides itself on being “made up of Christian administrators, faculty and staff”. My job prospects at TWU are nil. I’m worse off than if I were a gay Christian.

and this,

Thus, non-Christian straight students are about as equally discriminated against as are Christian gay students. Non-Christian gay students would be doubly discriminated against.

Wait, what just happened there? Where did the respect and dignity go? I suppose what was missing from the list is equality but then I always thought that equality was part of respect and dignity. Saying that because other groups will be even more discriminated against we should stop worrying about it doesn’t help get me on board.

As I said Mr. Bhabha, I respect your commentary. It just doesn’t make sense to me personally.

There is at least an argument that the ‘respect and dignity’ is what is demonstrated to those outside the community. Members of the community must follow community rules, and they treat each other with respect and dignity, and also those outside with the same.

The Dalai Lama treats about everyone with respect and dignity, without requiring that they adhere to his particular version of Buddhism. The new Pope seems to treat everyone with respect and dignity, including gays and even atheists, though he has not changed a word of Roman Catholic dogma that the latter are damned to eternal hell and the former, if they are not celibate, are likewise doomed.

Obviously a particular community, religious or secular, can treat outsiders with contempt or worse, but they don’t have to as a matter of logic or experience.

The US has a long experience with Catholic law schools, some with an excellent reputation, though they adhere (so far as I know) to standard doctrine in matters of faith. For that matter, Quebec’s old French-language law schools, U of M and Laval, come from a strong Catholic tradition (the latter named after a bishop), but they have provided a first-rate legal education.

So I think Prof. Bhabha’s proposition is very defensible: judge the law school on the results of its legal training, not on the religious beliefs of the students, which we may not share. It sounds like a horrible place for me to spend time, but they’re not trying to attract me, so why does that matter?

I am a TWU grad (BA) and a lawyer, and know many other TWU grads now practicing law. We already exist! I won’t comment on all of these arguments, but can confirm that TWU lawyers take our professional obligations to clients very seriously. I have never disciminated against gay clients, and I’ve not seen any evidence that other TWU graduates do.

The worst part of TWU’s discrimination is that it propagates the myth that sexual orientation is a choice. At TWU, sexual orientation is the subject of a student vow, the breach of which can lead to expulsion. Sexual orientation is question of choice, not an innate part a human being’s identity.

Viewing sexual orientation as a choice undermines the validity and recognition of sexual minorities’ very existence. It reduces these groups back to their past invisibility. If sexual orientation is a choice, then sexual minorities don’t really exist, because supposed members of these minorities are just members of the heterosexual majority who have made the decision to “act” like they aren’t a member of the heterosexual majority. In other words, if sexual orientation is a choice, then sexual minorities aren’t “real” minorities because such minorities could always choose not to be gay (or trans, or bisexual or anything other than straight).

In contrast, Canadian law conceives of sexual orientation as “a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs” (Egan v Canada, [1995] 2 SCR 513 at para 5). This reasoning has enabled Canadians who are members of sexual minorities to fight against discrimination and to have sexual orientation recognized as an analogous ground under s. 15 of the Charter. (Also in Egan, a majority of the Supreme Court recognized that gays, lesbians and bisexuals, “whether as individuals or couples, form an identifiable minority who have suffered and continue to suffer serious social, political and economic disadvantage” (para 175, per Cory J.; para 89, per L’Heureux‑Dubé J.).

How can law be taught at TWU if it will not teach all of Canadian law, namely the part that says that sexual orientation is an intrinsic personal characteristic that should not form the basis of discrimination? Unless this institution changes its stance vis-à-vis the very existence of sexual minorities, it will be incapable of accurately teaching Canadian law. The institution’s conception of sexual orientation, a purported choice, is incompatible with contemporary Canadian law, since it reasons away a recognized ground of discrimination.

The International Covenant on Civil and Political Rights (to which Canada is a party) outlines certain key human rights which are so fundamental that they are not to be derogated from even in a time of public emergency (Art. 4). One of these is found at Art. 16, and reads “Everyone shall have the right to recognition everywhere as a person before the law.” In my view, stripping gay, lesbian, transgendered, bisexual, and other members of sexual minorities of their very status as members of a valid identifiable minority is a violation of their rights to be persons before the law.

Battles against discrimination have long been fought on a definitional level. Women became “persons” thanks to the Privy Council in 1929 (reversing the Supreme Court’s finding). Slavery had at its horrid inner core the rationale that slaves were not people. The discrimination which is occurring at TWU is also happening on a definitional level. According to TWU, all people can choose to be heterosexual; by extension no one is inherently not heterosexual. Sexual minorities thus do not actually exist, and thus are not subject to discrimination.

Lastly and very sadly, the criminalization of non-heterosexuality in numerous states around the world follows this reasoning. In many countries, the law does not accept that some people are valid and innate members of sexual minority groups, but instead criminalizes their non-heterosexual “choices.” (This is an offence subject to the death penalty in Mauritania, Sudan, Iran, Yemen and Saudi Arabia, see: http://www.theguardian.com/news/datablog/2013/oct/15/state-sponsored-homophobia-gay-rights.) Heterosexuals who think that sexual orientation is a choice should ask themselves when they chose to be straight. The likely answer, “I just am,” should reveal that sexual orientation is not a conscious decision that can be the subject of a student vow. Heterosexuals need to learn to share the definitional spectrum of what it means to be a person.

Why is it more offensive that TWU requires homosexuals to be chaste than that it requires heterosexuals to be chaste? All students vow to abstain from sex outside marriage, whatever their sexual orientation.

AND you have to say you believe a ton of malarkey apart from all that.

But surely the Catholic universities also believe that homosexual sex, and sex outside marriage, are sinful. Why are they acceptable homes for law schools when TWU is apparently not?

It is more offensive that TRU requires homosexuals to be chaste than that it requires heterosexuals to be chaste be because hetersexuals only have to be chaste until marriage, while non-hetersexuals do not have the option of marriage (according to the convenant). Non-heterosexuals thus face the “option” of a lifetime of chastity. This is a double standard.

subject, of course, to the proportion of people who are married while students, which is pretty small. Once one has graduated from university, one is not bound by the covenant made to join that community. They can’t expel you any more. So minor disparate impact.

I agree it’s offensive, but it’s offensive for everybody, and it’s offensive for reasons beyond the provisions about sexual morality.

And it’s offensive for reasons that have – as Prof Bhabha said in the original post – nothing substantial to do with the university’s ability to train competent lawyers.

Several issues seem to be being combined here in a way that precludes clarity.

The comparison of TWU with other (originally) religiously founded universities: There is a significant difference between a religious group having paid to found an institution — after which those who teach and learn there have academic freedom — and a religious group founding an institution and demanding that all who attend follow the precepts of that religion. Ottawa U was originally founded by a Catholic monastic order. Yet in their hiring of professors there is no requirement that the hiree follow the tenets of the Roman Catholic faith. Likewise their student body is comprised of followers of many different religions (and none at all) and does not force them to covenant to behave as good Catholics should.

The lack of context given to the difference between TWU’s actions and their convictions or beliefs — Agreed: we have freedom of belief, and the owners of, and professors, at TWU should be able to believe whatever they wish and still teach students to be conscientious members of the bar. Yet “do what I say, not what I do” only goes so far, and TWU engages in discriminatory ACTIONS on a regular basis. I would expect the LSUC to be unhappy with a lawyer (or paralegal) who advertised that they would only serve clients of a specific religion. Even unhappier if the licensee demanded prospective clients adhere to specific moral standards within that religion to obtain representation. My mind boggles to think of a Court accepting as a reason for withdrawal from a file during trial: “My client had sex outside of marriage and I must withdraw for religious reasons.”

Most scary of all, of course, is the question of appointments to the judiciary. Law schools celebrate their alumni being elevated to the Bench. Will attendance at TWU-Law be considered reason not to appoint an otherwise qualified practitioner? If it is, why? If it isn’t, how many “reasonable apprehension of bias” recusal requests will follow?

If law professors should be held to *any* standard of behaviour, it should be the standard demanded of members of the Bar in their province.

The bottom line is that most areas of Canada are rapidly approaching (if they have not already passed) the point of saturation in terms of both law schools and their graduates. It is highly unlikely that there will be a large number of universities added in the future, and, even if there were, they would be unlikely to be new institutions founded for the purpose of offering educational programs to the students excluded from TWU. Stating that excluded students can go to other institutions, and that their exclusion from TWU does no harm is naive. At any given moment there are x spots available for fall enrollment in accredited law schools in Canada. At the same moment there are usually more than x applicants. There is no reason to presume that Evangelical Christian students will suddenly stop going to other Law schools as they have in the past. As in the past all the other schools will admit a mix of students, some of whom are excluded by TWU. Adding another school, should give ALL of those students another opportunity to attend if they can’t get into whichever school MacLeans Magazine has branded the best in Canada this year. If TWU is the added school, that will not happen, and the students they exclude will be harmed by that exclusion.

Finally, to directly address two of Mr. Bhabha’s points:

To the extent that the Community Covenant regulates sexual activity, it doesn’t adversely affect gay sex any more than straight sex outside of marriage. The adverse impact the Covenant would have on the sex life of an LGBT person (abstinence), is identical to the adverse impact it would have on an unmarried straight person (abstinence).

No. An unmarried straight person may choose to get married and that marriage would be recognized by TWU. Whether a person is already in a same-sex marriage when they enroll, or enters one as a student, TWU will not recognize that marriage. The implications of that extend — as they always have — to more than sexual activity. Many universities have married student residences, or offer student health insurance plans that include the option of family coverage.

Suggesting this is merely about whether or not a student at TWU can have sex trivializes same-sex relationships in a way that is tediously familiar to anyone who is aware of the history of homophobia and the fight against it.

Whether this ultimate sacrifice would be voluntary or coercive would not be determined by one’s sexual orientation. Rather, it would be determined by the seriousness of one’s commitment to traditional Biblical teachings, which presumably is what would attract individuals to apply to TWU in the first place.

Abstinence is the ultimate sacrifice? That’s either a failure in an attempt at humour or a significant lack of perspective…

And the rest of the paragraph implies there are no gay, lesbian or bisexual Evangelical Christians. Sorry to disappoint, but being queer doesn’t magically make us immune to religion. There are undoubtedly people attracted to the traditional Biblical teachings of TWU who would be excluded on the basis of sexual orientation or other factors.

Personally, I take no offence at being excluded from a community whose values I do not share. But that is no reason to delegitimize the community or ban its educational institutions from the law school club.

While I am glad to hear that Mr. Bhabha takes no offence, his offence or lack thereof is irrelevant. Suggesting that it might be, implies that those who wish for TWU to remain as it is a general arts school rather than an accredited law school, do so on the basis of personal offence at our exclusion. To be offended by TWU would require their ascending in my esteem to a point at which I cared about their opinion.

Fortunately Charter values were not set based on what was offensive, but rather on what was discriminatory, unreasonable, or unjust. TWU discriminates against a large number of potential students, and threatens discrimination against a (presumably) small number of actual students who compound their sins against the TWU covenant by lying.

Given the obligation imposed on lawyers and paralegals not to bring the administration of justice into disrepute, I would suggest that we likewise have a duty not to bring the education of justice into disrepute. Allowing lawyers and future judges to be taught in a university that is most well known for discrimination that would not be permitted in any public institution is a clear breach of that duty.